Law Office of K. William Clauson, of Hanover (K. William
Clauson on the brief and orally), for the plaintiff.

Nighswander, Martin & Mitchell, P.A., of Laconia (Walter L.
Mitchell and Timothy Bates on the brief, and Mr. Bates
orally), for the defendant.

MEMORANDUM OPINION

BATCHELDER, J. The defendant, the Town of Bridgewater (town), appeals the
Superior Court's (Fauver, J.) grant of attorney's fees to the plaintiff,
John Voelbel. We reverse.

Without prior notice, the town selectmen terminated the plaintiff from his
position as police chief. In response, the plaintiff sued the town in superior
court. See RSA 105:2-a (1990). Following this court's decision in
Johnson v. Nash, 135 N.H. 534, 608 A.2d 200 (1992), the plaintiff moved
for summary judgment, arguing that the lack of prior notice of his termination
violated New Hampshire's Right-To-Know Law. See RSA 91-A:3, II(a) (1990).
The superior court agreed and, after a hearing, ordered the plaintiff's
reinstatement. Citing Bradbury v. Shaw, 116 N.H. 388, 360 A.2d 123
(1976), the court also awarded the plaintiff his attorney's reasonable fees. The
town appealed; we accepted only its appeal of the award of attorney's fees.

RSA 91-A:8 (1990) governs the award of attorney's fees when the Right-To-Know
Law has been violated. Although the statute as originally enacted mandated the
award of attorney's fees in every case, subsequent amendment provided for the
award of fees at the discretion of the trial court. Compare Laws 1973,
113:1 with Laws 1977, 540:6. Prior to the violation here, the statute was
again amended to prohibit the award of attorney's fees "unless the court finds
that the body, agency or person knew or should have known that the conduct
engaged in was a violation of this chapter." RSA 91-A:8; see Laws 1986,
83:7. Consequently, only if the town knew or should have known that the
plaintiff was entitled to prior notice of his termination would the award of
attorney's fees be proper.

The trial court found that the selectmen consulted with town counsel about
what procedure should be followed before dismissing the plaintiff and that, to
the extent relevant, they followed that advice. It also found that prior to our
decision in Johnson v. Nash, "it was not generally understood among
municipal law practitioners in New Hampshire that the provisions of RSA 91-A:3,
II(a) required advance notice to an employee that his or her dismissal would be
considered in executive session." Moreover, the trial court found that the town
acted in good faith, and that the violation of the Right-To-Know Law was not
obvious, deliberate, or willful.

These factual findings fail to support the award of attorney's fees. Although
the trial court cited Bradbury v. Shaw in support of the award, that
decision was based on the original version of the statute, which mandated an
award of attorney's fees whenever the Right-To-Know Law was violated. See
Laws 1973, 113:1.

Nor do the cases cited by the plaintiff, Silva v. Botsch, 121 N.H.
1041, 437 A.2d 313 (1981), and Foster v. Town of Hudson, 122 N.H. 150,
441 A.2d 1183 (1982), sustain the award of attorney's fees. Neither case dealt
with the Right-To-Know Law, which has its own statutory directive regarding
attorney's fees. Rather, they each dealt with the award of attorney's fees to a
public servant under common law principles, which do not apply here.
Accordingly, we reverse.

Reversed.

JOHNSON and BRODERICK, JJ., did not sit; BATCHELDER, J., retired, sat by
special assignment under RSA 490:3; all who sat concurred.